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Empowered shock jocks must also be accountable


Unidentified shock jock

There is currently debate over whether free speech is a more important human right than freedom from racial discrimination. This follows the Federal Government's election promise to eliminate the 'hurt feelings' test from the vilification grounds of Section 18C of the Racial Discrimination Act. The pledge before the election was prompted by a court finding that journalist Andrew Bolt broke the law when he caused offence with his questioning of the ethnicity of particular fair-skinned Aboriginal persons.

Aside from discussion of the fate of Section 18C, there is no question that news media are becoming more powerful as players in our democracy and that they will continue to act as staunch free speech advocates. That is not surprising because free speech principles enshrined in law give investigative reporters and shock jocks alike the legislative freedom they need to do their job.

However if media organisations are arguing for a change to the Racial Discrimination Act, they need to match their free speech demands with rock solid accountability in regard to accuracy in reporting. Currently it's largely traditions of professional practice such as journalists' fact checking that is holding them to account. These are mirrored in the codes of the government and industry regulators such as ACMA and the Press Council, which offending media often treat with derision.

In this context, it is regrettable that there are demands for less — rather than more — accountability for accuracy in reporting. During the week, the Australian Financial Review covered demands for a weakening of accuracy codes, by a lobby group representing the half Murdoch owned pay TV operator Foxtel. 

The Australian Subscription Television and Radio Association (ASTRA) made the demands in a submission to the Contemporary Community Safeguards Inquiry that is being undertaken by the government media regulator ACMA. ASTRA claimed that it is often difficult for 24 hour news channels such as Sky News Australia to assess the reliability of information in a fast-moving rolling news coverage. 

The old days of verifying information through several sources before publishing are gone. This calls for a new form of accuracy, including transparency about the state of knowledge, the nature of any source being relied on, as well as the capacity to clarify information as a story develops.

ASTRA is correct. Unverified YouTube video of atrocities in Syria may be all a news channel has to go on. However it only misleads viewers if an apparent atrocity is reported as fact, or even probable fact, when the video may have been planted on YouTube by one side of a conflict bent on manipulating international public perception in its favour. 

ASTRA's proposal is that unverified reporting can be done with qualifiers such as a statement that the video is from an unverified source. This is common practice already and it doesn't work because visuals — verified or not — speak more loudly than words. 

With regard to changing Section 18C of the Racial Discrimination Act, there's a strong argument for the status quo, in order to protect the right of individuals and groups from vilification. But if the Federal Government insists upon changing the law to give preference to free speech, it must include robust legislation to penalise journalists and media organisations who get their facts wrong. 

Michael MullinsMichael Mullins is editor of Eureka Street. 

Topic tags: Michael Mullins, Andrew Bolt, free speech, ASTRA, ACMA, Press Council, Section 18C, Anti-Discrimination Act



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Existing comments

This quote from T S Eliot is pertinent to this article, I think: "We have in modern society a huge journalistic organism the 'critical' or review press which must be fed - there simply is not enough, nowhere near enough, good creative work to feed the 'critical' machine, and so reputations are manufactured to feed it, and works born perfectly dead enjoy an illusory life". This was written in 1920. Things don't seem to have improved in journalistic ethics, quite the reverse. Journalists who take pride in their work should have nothing to do with vilification, and everything to do with sense and vision.

Pam | 07 March 2014  

So what would be the penalty for saying that Tony Abbott had set his ASIO dogs loose on Susilo Bambang Yudhoyono when in fact it was done under the previous Labor Government? (Eureka Street "Abbott's spy games" Tony Kevin 19 November 2013.) Or is it only the empowered shock jocks that are capable of errors and stirring up strife? Are they the only ones in the media who have to be held to account? God forbid that the angels at Eureka Street would ever be guilty of such crimes. It's ridiculous to legislate penalities against journalists for errors. There are such things as honest errors, research may have been imperfect, or there could be bias leading to a predetermined conclusion without looking for contrary evidence, as I noted above with Tony Kevin. The best way to penalise a journalist for getting their facts wrong is to point out their errors. The shame of being shown wrong should be sufficient. Otherwise we head yet another step closer to the totalitarian state where big brother watches all that we say and write, ever ready to pounce when one of those "evil" journalists transgresses.

faja | 07 March 2014  

Mr Mullins seems to think that changes to Section 18C should be accompanied by "robust legislation to penalise journalists and media organisations who get their facts wrong." That any such legislation, robust or otherwise, should be contemplated would be wonderful indeed, seeing that no penalties are prescribed at present. Commenter "faja" says "The best way to penalise a journalist for getting their facts wrong is to point out their errors." He doesn't say how or to whom this pointing out might be done. In the infamous Andrew Bolt case, News Ltd could have saved themselves considerable legal costs simply by retracting the incorrect "facts" in Mr Bolt's column - which was exactly what the Court ordered them to do and was the full extent of the 'penalty'. Free speech proponents who cite the Bolt case appear to be saying that untrue or fictional, and offensive, insulting, humiliating or intimidating published material based on a person or group's race or ethnicity should not have to be retracted. This would be very free speech indeed.

John Vernau | 07 March 2014  

@John Vernau. One way that we can point out journalists' errors is via the very means that you and I are using now, i.e. the internet. The 'to whom' is those who read sites on the internet, like Andrew Bolt's blog, Crickey, Eureka Street, New Matilda, the Drum etc. From what I have read of the Bolt case the main issue was that in Mordecai Bromberg's judgment Bolt's comments were… " reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people". The nub of the problem, for me at least, is that far too much of the law's application lies in the personal opinion of the judge. The standards that any judge applies are far too susceptible to his/her personal opinions and biases. It is very difficult to find an objective community standard of what is offensive, humiliating etc. My closing sentences in my earlier comment come from a fear of people who think that we are only one regulation more away from being a nicer society. Such regulations are easily open to abuse and misuse, and in reality are a threat to stifle dissenting opinions.

faja | 09 March 2014  

@faja. Thanks for your comment; you've given me pause for thought. Although Justice Bromberg did find that Bolt's piece was "reasonably likely ... to offend, insult etc", Bolt and News Ltd could have been excused under S18D (exemptions), which allow, similarly to libel law, fair comment in the public interest. Mr Bolt was unable to avail himself of the exemptions as he relied on untrue material in the contentious article. The plaintiffs used the Court to point this out. I admit that they (plaintiffs) could have made a case for Libel. Libel laws were adequate when major news media could be relied on to retract factual errors, and perhaps they still are, without bringing "race" into the argument. I was much taken with your "people who think that we are only one regulation more away from being a nicer society" remark. Maybe the main function of the R.D. Act is to allow us feel self-righteous and egalitarian. In any case I find it hard to believe that anyone has an inherent 'human right' not to be offended or insulted.

John Vernau | 09 March 2014  

In Bolt’s case, Section 18 ensured that the decision was based not on community standards, but on the subjective standard of those who claimed to be offended. It even enabled the judge to be critical of Bolt’s tone, his choice of words, and for not including material the judge believed should have been included. Such an approach can be easily manipulated by those with an axe to grind. But “shock jocks” are hardly alone when it comes to insulting behaviour. Geoffrey Luck who worked for the ABC for 26 years wrote how the ABC has, “progressively watered down its complaints and appeals procedures. Today it is virtually impossible to obtain a finding that any program or any person has breached the fine sentiments expressed in its codes.” When former ABC chairman, Maurice Newman, made a formal complaint about science journalist Robyn Williams comparing climate sceptics to paedophiles, the ABC complaints department rejected his complaint. And when an ABC program depicted journalist Chris Kenny as having sex with a dog with a photo shopped image captioned “Chris ‘Dog F..ker’ Kenny” the ABC refused to apologise and Kenny is taking court proceedings for defamation which the ABC is defending with taxpayers money.

Ross Howard | 09 March 2014  

Michael, Bolt didn't question their ethnicity as you put it ...he questioned why they picked the Aboriginal part of their background (sometimes the lesser part by percent) over their Celtic or European part ....was it for some social or economic advantage ? I'm sure you try to be as accurate as possible so it's good to clear this up I think ...

Gerry | 10 March 2014  

The difficulty I have with any relaxation of the laws surrounding free speech is the power of the media versus that of an individual. If I was to be defamed for writing this I would not have the resources to fight a case. Nor would any legal response be immediate but subject to procedural delays and played out long after defamation was incurred. Equality before the law is fine in theory, less achievable in practice.

D. O'Connor | 10 March 2014  

I think Ross Howard and D O'Connor made some very salient points on the practicalities of the issue of press freedom and the right of redress. The power equation seems to be heavily in favour of the news media. Shock jocks or deliberately over-contentious journalists do need some external limitation on their ability to gratuitously offend the sensibilities of others. It would, I fear, be too much to rely on their good taste.

Edward Fido | 10 March 2014  

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